Objecting to a Subpoena

When talking to a psychologist or counsellor, we generally feel we can speak freely given that these professionals have a duty to keep any information that has been shared confidential. But does this confidentiality apply where there is family law litigation? This article examines whether the duty of counsellors to maintain confidentiality applies when they are subpoenaed in relation to a parenting matter and outlines what is involved in objecting to a subpoena.

What is a Subpoena? 

A subpoena is a legal document that is sought by a party to proceedings and issued by a court. It requires a third party to produce documents or give evidence to the court. A party may object to complying with a subpoena if they have a legal basis for doing so. 

Objections Specific for Counselling Records

A psychiatrist or psychologist may object to a subpoena on the basis that the evidence sought falls into the category of privileged communications. They may also object on the basis of public interest immunity (ie the disclosure of the information would be against the public interest).

The Family Law Act 1975 provides that counselling records are prohibited from being disclosed in proceedings unless:

• The counsellor reasonably believes the disclosure is necessary to comply with a law;
• The person who made the communication is over 18 and consents to disclosure; 
• The person who made the communication is under 18 and each person who has parental responsibility consent to disclosure;
• The counsellor reasonably believes that the disclosure is necessary for one of several specified purposes including to protect a child from harm or to prevent or lessen a serious and imminent threat to a person.

The Family Law Act 1975 provides that evidence of anything said, or any admission made, by or in the company of a Family Counsellor, is not admissible. This does not apply if an admission or disclosure, indicates that a child under 18 has been abused or is at risk of being abused. 

Objecting to a subpoena

A person who is addressed in a subpoena must, in circumstances where documents are sought, produce the documents to the court. It then becomes a matter for objections to be raised and heard before the judge. The person subpoenaed or a party to proceedings can raise an objection to the subpoena. There are time limits on when an objection can be made, and we recommend that a person obtains legal advice when issued with a subpoena or served with a subpoena in litigation. 

The Federal Circuit and Family Court Of Australia (Family Law) Rules 2021 set out the procedures that must be followed where a party seeks relief in respect of a subpoena. 

Under Rule 6.16 a party may object to production under a subpoena on the basis of:

• privilege from production; or
• on the basis that they are unable to produce the document.

If a party objects to production and another party challenges the claim, the objecting party must file an affidavit setting out the basis for the claim within seven days of the challenge. 

How Will the Court Determine an Objection to a subpoena? 

Counselling records are not prima facie admissible in court. However, section 55 of the Evidence Act 1995 provides that: 

“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

Evidence that is relevant in a proceeding is therefore admissible. This means that a court can admit counselling records if it considers they are relevant to the proceeding. However, the court has a general discretion to exclude evidence “if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.”

Accordingly, courts will exclude counselling records where they are likely to unfairly prejudice the court against a party.

Case law on objecting to a subpoena

A number of recent family law decisions have elaborated on what must occur where a party is objecting to a subpoena.

Hatton v Attorney General

In the 2000 Family Court decision of Hatton v Attorney General, the court set out a three-step process for objecting to a subpoena. The three steps it prescribed were as follows. 

1. The witness obeys the subpoena, by bringing the documents to the court and handing them to the judge – this step involves the determination of any objections;

2. The judge makes a decision concerning the preliminary use of the documents, including whether or not permission should be given to a party or parties to inspect documents; and

3. The evidence is admitted into evidence in whole or in part, or excluded. 

Sampson & Hartnett

In the 2014 Federal Circuit Court decision of Sampson & Hartnett, the father sought a subpoena to a hospital to produce all “documents, including all correspondence, records and notes in relation to any communication or consultation with, or the attendance of (the mother) at (the) Hospital from 01 July 2012 up to the date of service”.

In determining whether to admit the evidence, the court noted the earlier decision of Jermyn & Carling where his Honour analysed the principles of public interest objection to inspection at paragraph [60] – [64] of his judgment:

1. The welfare of a child may override any privilege which either parent may possess;
2. There is a public interest in the proper administration of justice that all relevant evidence should be produced to the court, but this is subjection to exception;
3. Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships;
4. Public interest immunity may be claimed because an individual document is privileged or because the individual document belongs to a class of documents or because the individual document belongs to a class of documents on the ground that vital organisations cannot operate if certain classes of communication are divulged”.

Hastings & March

In Hastings & March [2019] FCCA 2548 an objection to a subpoena by the child’s treating counsellor was upheld in circumstances where two reports of the child’s therapy were already before the court.

Conclusion

The above decisions show that where subpoenaed psychiatric or psychological records are relevant to a case and the objections are outweighed by the probative value of the material, then the material is likely to be admitted as evidence. Where the probative value of the material is outweighed by the objection to its release, the objection to the subpoena may be upheld.  

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.